Can we expect any privacy when it comes to personal emails created at work? Perhaps a little. The New Jersey Supreme Court in Stengart v. Loving Care Agency affirmed a lower court opinion last week holding that despite an employer’s corporate computer policies reserving all rights to review employee emails, an employee’s communications with her attorney were protected by the attorney client privilege and, thus, off limits to review by her employer. 2010 WL 1189458 (N.J. March 30, 2010).
Marina Stengart used her employer’s laptop computer to communicate with her attorney about an anticipated lawsuit against her employer “through her personal, password-protected, web-based email account.” Id. at 2. . After Stengart filed a discrimination suit her then ex-employer found numerous emails on the company computer between Stengart and her attorney. These emails were found in temporary Internet files that had been saved to the hard drive.
Stengart’s employer had the following corporate computer policy permitting it to review “all matters on the company’s media systems” and allowed “[o]ccasional personal use:
The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice. E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.
The principal purpose of electronic mail (e-mail ) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.
The court based its decision on (1) the ambiguity in the policy creating for Stengart an expectation of privacy that her emails with her attorney would not be viewed by her employer and (2) the important policy concerns underlying the attorney client privilege. First, the court found that “t is not clear from that language [of the policy] whether the use of personal, password-protected, web-based e-mail accounts via company equipment is covered” and “[t]he Policy also does not warn employees that the contents of such e-mails are stored on a hard drive and can be forensically retrieved and read by” the employer. Id. at 6.
The court concluded that “[a]s written, the Policy creates ambiguity about whether personal e-mail use is company or private property.” Id. Therefore, Stengart had an expectation of privacy in her email communications with her attorney over her company laptop. Second, the court held that “[b]ecause of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual-that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system, would not be enforceable.” Id. at 12.
It is this second prong of the decision with which I disagree. Traditional attorney client privilege law does not permit the privilege to exist where the client knows that the communications may not be private. There is no sound reason why that law should not apply if the email communication is made with full warning that use of personal internet based emails, even communications with an attorney, on a company computer may be monitored and viewed by the employer.